From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification

Abstract

Questions about substantive judicial review - its legitimacy, its appropriate intensity, its proper limits - often appear to be as intractable as they are beguiling. The appeal - but also the complexity - of the debate lies, at least in part, in the fact that it is animated by disagreement about underlying constitutional matters, including the rule of law, the separation of powers, and the nature, status, extent, legitimacy and interaction of legislative, administrative and judicial authority. In this chapter, I am concerned with substantive review in the narrower of the two senses in which the term is used in this book: that is, review of the decision itself, as distinct from the process by which the decision was taken, on grounds involving some degree of scrutiny of the merits. More particularly, the aim is to explore the relationship between the constitutional matters mentioned above and the front-line doctrinal tools, such as the Wednesbury and proportionality tests, that are associated with substantive review. I will advocate an approach that, while acknowledging the valuable role that doctrinal tools are capable of playing in the structuring of law and legal reasoning, insists upon such tools’ subservience to the underlying concerns that ought to be in the driving seat. I will also argue against approaches that promise neat, bright-line distinctions but which do so by masking underlying normative or constitutional complexity through the application of a formalist doctrinal veneer.